United States v. Parcel of Land & Residence at 18 Oakwood Street

958 F.2d 1, 1992 WL 29393
CourtCourt of Appeals for the First Circuit
DecidedFebruary 21, 1992
DocketNos. 91-1967, 91-1968
StatusPublished
Cited by12 cases

This text of 958 F.2d 1 (United States v. Parcel of Land & Residence at 18 Oakwood Street) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Parcel of Land & Residence at 18 Oakwood Street, 958 F.2d 1, 1992 WL 29393 (1st Cir. 1992).

Opinion

CYR, Circuit Judge.

Appellant William Cooper, record owner and claimant of the real property located at 18 Oakwood Street, Dorchester, Massachusetts, appeals a grant of summary judgment directing civil forfeiture of the defendant property to the United States.1 Coo[3]*3per also appeals the denial of his motion for relief from judgment pursuant to Fed. R.Civ.P. 60(b). We affirm.

I

BACKGROUND

The United States filed its forfeiture complaint against the property at 18 Oak-wood Street in October 1990 and supported it with the sworn affidavits of Task Force Agent Aaron Gross of the United States Drug Enforcement Administration and Detective Charles Johnson and Deputy Superintendent Arthur Morgan, Jr., both of the Boston Police Department. The affidavits state that between April 1985 and July 1989, 18 Oakwood Street was the site of more than twenty-nine drug-related arrests.2 Among those arrested were Mary Williams, allegedly the common law wife of William Cooper, and Ronald and Barbara Williams, the adult children of Mary Williams and William Cooper.3 The affidavits further attest that William Cooper was present during a search of an apartment at 18 Oakwood Street which disclosed marijuana and led to the arrest of Mary Williams for possession of marijuana with intent to distribute. The affidavits assert that on more than one occasion officers observed William Cooper acting as a “lookout” from the porch, while drug transactions were conducted at the property.

William Cooper made a general denial of the government’s allegations, contended that he was an “innocent owner” of the defendant property, and urged dismissal of the forfeiture complaint due to “government lassitude” because the most recent allegations of drug activity at the property predated the commencement of the action by more than a year. The motion for summary judgment was granted, based on what the district court found to be “ample evidence” and the failure of claimant Cooper to establish an adequate defense. The district court subsequently denied Cooper’s rule 60(b) motion to vacate the judgment of forfeiture.

II

DISCUSSION

A. Forfeiture Action

At the outset of a civil forfeiture action under 21 U.S.C. § 881(a)(7), the government must establish probable cause to believe that the defendant property was used to facilitate a drug crime, United States v. Parcel of Land & Residence at 28 Emery St., 914 F.2d 1, 3 (1st Cir.1990); United States v. Parcels of Real Property, etc., 913 F.2d 1, 3 (1st Cir.1990). By this we mean there must be sufficient evidence to form a “reasonable ground for belief,” id. at 3; United States v. One Lot of U.S. Currency, 927 F.2d 30, 32 (1st Cir.1991), that the defendant property was “connected with illegal drug activity,” United States v. One Parcel of Real Property, 921 F.2d 370, 375 (1st Cir.1990). Once the government makes the required “probable cause” showing, the burden shifts to the claimant to prove by a preponderance of the evidence that the defendant property was not used in violation of the statute or that it was so used without the claimant’s knowledge or consent. One Lot of U.S. Currency, 927 F.2d at 32; 28 Emery St., 914 F.2d at 3. See also supra note 1. Our plenary appellate review of a grant of sum[4]*4mary judgment considers all competent record evidence, see Fed.R.Civ.P. 56(e), and the reasonable inferences therefrom, in the light most favorable to the nonmovant. See, e.g., Siegal v. American Honda Motor Co., 921 F.2d 15, 17 (1st Cir.1990).

Cooper first contends that the affidavit of DEA Agent Gross, which was based on information from Detective Johnson and Deputy Superintendent Morgan, contains unreliable hearsay that could provide no support for the government’s showing of probable cause. We disagree. “It is well established that ‘[hjearsay may contribute to probable cause for issuance of a [forfeiture] warrant, if there is substantial basis for crediting the hearsay.’ ” Parcels of Real Property, etc., 913 F.2d at 3 (quoting United States v. One 1974 Porsche 911-S Vehicle, 682 F.2d 283, 285 (1st Cir.1982)). The reliability of the Gross affidavit was substantiated by its supporting documentation pertaining to extensive illegal drug activity at 18 Oakwood Street and by the accompanying affidavits of Johnson and Morgan, attesting to the accuracy of the representations made in the Gross affidavit concerning events about which Johnson and Morgan had direct personal knowledge. The Gross affidavit contained competent and reliable evidence which the district court was entitled to consider.

Second, Cooper contends that the information presented by the government was “stale,” since all the alleged drug activity took place more than a year prior to the forfeiture action. Cooper neither indicates how the timing of the commencement of the forfeiture action adversely affected the reliability of any evidence adduced by the government, nor does he allege any other prejudice. Absent some showing of prejudice, we do not think Cooper is entitled to a carte blanche exclusion of competent evidence in an action commenced well within the five-year limitations period. See 19 U.S.C. § 1621 & 28 U.S.C. § 2402 (prescribing five-year limitation period for civil forfeiture actions); see also United States v. Land and Bldg. at 2 Burditt St., 924 F.2d 383, 385 (1st Cir.1991) (§ 881 forfeitures are subject to five-year statute of limitations prescribed by these sections).

Cooper contends, in the alternative, that he is an “innocent owner” and that the defendant property therefore is not subject to forfeiture. See 21 U.S.C. § 881(a)(7). The burden of proving the defense of innocent ownership rests with the claimant. See United States v. 1980 Red Ferrari, 827 F.2d 477, 478 (9th Cir.1987); United States v. $4,255,625.39, 762 F.2d 895, 906-907 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1986).

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958 F.2d 1, 1992 WL 29393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-parcel-of-land-residence-at-18-oakwood-street-ca1-1992.